IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

Jason Jones, : 

 Plaintiff, : Case No. 2:11-cv-871 

 v. : JUDGE GREGORY L. FROST 

 Magistrate Judge Kemp 

Warden, Ross Correctional : 

Institution, et al., 

 : 

 Defendants. 

REPORT AND RECOMMENDATION AND ORDER

Plaintiff, Jason Jones, an inmate who was housed at Ross 

Correctional Institution at the time relevant to this action, 

filed this action against several state employees in their 

individual and official capacities pursuant to 42 U.S.C. §1983. 

Defendants have filed a motion to dismiss, which has been fully 

briefed. For the following reasons, it is recommended that the 

motion be granted in part and denied in part as described below. 

 Defendants have also filed a Motion to Strike “Plaintiff’s 

Response to Defendants Reply to Plaintiff’s Memorandum in 

Opposition to Defendant’s Motion to Dismiss.” Defendants argue 

that the filing at issue, which is essentially a sur-reply, could 

not have been filed without leave from the Court for good cause 

shown. However, because the content of Mr. Jones’s sur-reply did 

not affect the Court’s analysis below, the motion to strike is 

denied as moot. 

I. The Complaint

The following allegations, which are taken to be true for 

purposes of ruling on the Defendants’ motion to dismiss, are from 

Mr. Jones’s complaint. Because Mr. Jones is without counsel, his 

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complaint must be liberally construed. See Erickson v. Pardus, 

551 U.S. 89, 94 (2007). 

From May 8, 2009 to the time of the filing of the complaint, 

Defendants Lieutenant Lunsford, Lieutenant Morison, and 

Lieutenant Powers, all employees at the Ross Correctional 

Institution, conspired “on multiple occasions” to place Mr. Jones 

in harm’s way “by repeatedly moving him to housing units that are 

[d]angerous to him[] [i]n a[n] attempt to kill or seriously 

injure him and extort plaintiff to work without proper pay from 

the state.” In addition, defendant prison officials “conspired 

to sexually [harass], [oppress], extort and place hits on 

plaintiff by paying inmates with tobacco and sex.” Mr. Jones 

claims to have been brutally assaulted on multiple occasions and 

has received multiple injuries including partial loss of vision 

in one eye. 

Furthermore, Mr. Jones claims that defendant prison 

officials Jeffreys and Whitten “demonstrated deliberate 

indifference and [dereliction] of duty in violation of Ohio 

Revised Code 2941.44 [sic 2921.44].” In particular, he asserts 

that they failed to take corrective action to address the risk 

faced by Mr. Jones when they received a grievance on June 14, 

2011. As a part of that failure, they disapproved Mr. Jones’s 

request for protective custody. 

Mr. Jones alleges that he is currently being housed in 

disciplinary confinement “under solitary confinement 23 hour a 

day lockdown” because Ross Correctional Institution does not 

contain a lawful protective custody facility. The absence of a 

lawful protective custody facility “compel[led] [W]arden Jeffreys 

to disapprove plaintiff[']s 'P.C.' request forc[ing] plaintiff to 

result to 'D.C.' as a result of his immin[e]nt Danger from the 

forementioned 'Lts'.” 

Mr. Jones also alleges that “[a]ll acts of misconduct 

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occurred as a direct proximate result of defendants[’] inactions 

to provide saf[e]ty to plaintiff in violation of the 8th Amendment 

in contravention of 42 USC Sec 1983 and defendants are liable for 

conspiracy . . . .” 

Mr. Jones seeks monetary damages as well as injunctive 

relief. In terms of injunctive relief, he seeks immediate 

transfer from Ross Correctional Institution to the closest 

institution with a protective confinement facility in order to 

avoid the continuing retaliation. He seeks placement in 

protective confinement (as opposed to disciplinary confinement) 

in an institution that has a lawful protective confinement 

facility. Since the time he filed his complaint, Mr. Jones has 

been transferred out of Ross Correctional Institution and is 

currently housed at the Toledo Correctional Institution. (Docket 

No. 8.) 

II. Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not 

be granted if the complaint contains “enough facts to state a 

claim to relief that is plausible on its face." Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007). All well-pleaded factual 

allegations must be taken as true and be construed most favorably 

toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). 

Rule 8(a) admonishes the Court to look only for a “short and 

plain statement of the claim,” however, rather than requiring the 

pleading of specific facts. Erickson v. Pardus, 551 U.S. 89 

(2007). 

A 12(b)(6) motion to dismiss is directed solely to the 

complaint and any exhibits attached to it. Roth Steel Products 

v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The 

merits of the claims set forth in the complaint are not at issue 

on a motion to dismiss for failure to state a claim. 

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Consequently, a complaint will be dismissed pursuant to Fed. R. 

Civ. P. 12(b)(6) only if there is no law to support the claims 

made, or if the facts alleged are insufficient to state a claim, 

or if on the face of the complaint there is an insurmountable bar 

to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 

702 (6th Cir. 1978). Rule 12(b)(6) must be read in conjunction 

with Fed. R. Civ. P. 8(a) which provides that a pleading for 

relief shall contain "a short and plain statement of the claim 

showing that the pleader is entitled to relief." 5A Wright & 

Miller, Federal Practice and Procedure §1356 (1990). The moving 

party is entitled to relief only when the complaint fails to meet 

this liberal standard. Id.

On the other hand, more than bare assertions of legal 

conclusions is required to satisfy the notice pleading standard. 

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th 

Cir. 1988). "In practice, a complaint must contain either direct 

or inferential allegations respecting all the material elements 

to sustain a recovery under some viable legal theory." Id. 

(emphasis in original, quotes omitted). 

"[W]e are not holding the pleader to an impossibly high 

standard; we recognize the policies behind rule 8 and 

the concept of notice pleading. A plaintiff will not 

be thrown out of court for failing to plead facts in 

support of every arcane element of his claim. But when 

a complaint omits facts that, if they existed, would 

clearly dominate the case, it seems fair to assume that 

those facts do not exist." 

Id. at 437 (internal quotations and citations omitted). It is 

with these standards in mind that the motion to dismiss will be 

decided. 

 Furthermore, because this is a proceeding in forma 

pauperis, the Court may dismiss the complaint sua sponte pursuant 

to 28 U.S.C. §1915(e)(2) if “(B) the action . . . is frivolous or 

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malicious [or] fails to state a claim on which relief can be 

granted . . . .” 

III. Discussion

Although Defendants have filed a motion to dismiss for 

failure to state a claim pursuant to Federal Rule of Civil 

Procedure 12(b)(6), Defendants do not address the elements of any 

particular claims. Instead, they point to general deficiencies 

such as the failure to connect allegations to any named 

Defendant, the failure to connect factual allegations to legal 

conclusions, the absence of allegations of specific acts of 

individual Defendants, and the absence of details such as the 

location and timing of specific acts. While the complaint is 

certainly vague and sparse, those deficiencies are not proper 

grounds for granting a motion to dismiss for failure to state a 

claim. Rather, the question is whether Mr. Jones has alleged 

facts sufficient to state claims upon which relief may be 

granted. Accordingly, this Court will examine the different 

claims in turn. 

A. Constitutional Claims against Defendants Lunsford, Morison, 

and Powers pursuant to §1983

“To state a claim under §1983, a plaintiff must allege the 

violation of a right secured by the Constitution and laws of the 

United States, and must show that the alleged deprivation was 

committed by a person acting under color of state law.” 

Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 

1998) (internal quotations and citations omitted). Mr. Jones has 

alleged that Defendants Lunsford, Morison, and Powers violated 

his Eighth Amendment right to be free from cruel and unusual 

punishment. 

“In its prohibition of ‘cruel and unusual punishments,’ the 

Eighth Amendment places restraints on prison officials, who may 

not, for example, use excessive physical force against prisoners. 

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. . . and must ‘take reasonable measures to guarantee the safety 

of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) 

(citations and internal quotations omitted). The Supreme Court 

has specifically held that “prison officials have a duty . . . to 

protect prisoners from violence at the hands of other prisoners.” 

Id. at 833 (citations and internal quotations omitted). To state 

a claim pursuant to the Eighth Amendment, a plaintiff must allege 

(1) a deprivation that is objectively “sufficiently serious,” for 

example, that the plaintiff is “incarcerated under conditions 

posing a substantial risk of serious harm,” and (2) that the 

defendant prison official has a “sufficiently culpable state of 

mind,” specifically one of “deliberate indifference” to inmate 

health or safety. Id. at 834 (citations and internal quotations 

omitted). Regarding the first prong, “[i]n the abstract, one 

prison inmate's threat to the health and safety of another inmate 

is 'sufficiently serious' to satisfy this requirement.” Williams 

v. McLemore, 247 Fed. Appx. 1, 9 (6th Cir. June 19, 2007). 

Regarding the second prong, deliberate indifference means 

“know[ing] of and disregard[ing] an excessive risk to inmate 

health or safety.” Farmer, 511 U.S. at 837. 

Here, Mr. Jones has alleged facts sufficient to satisfy the 

first prong – allegations of a deprivation that is objectively 

“sufficiently serious.” To demonstrate that he was incarcerated 

under conditions posing a substantial risk of serious harm, Mr. 

Jones has alleged that prison officials at Ross Correctional 

Institution conspired to hire other inmates to sexually harass, 

oppress, extort, and place hits on him and that he was brutally 

assaulted on multiple occasions and has received multiple 

injuries including partial loss of vision in one eye. These 

allegations go beyond the typical failure to protect claim where 

an inmate is being threatened by other inmates and the defendants 

merely learn of the threats. See, e.g., Williams, 247 Fed. Appx. 

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1. Instead Mr. Jones alleges that the defendants created the 

danger by hiring the inmates to harass and even “place hits on” 

Mr. Jones. In this context, the Court interprets the phrase 

“place hits on” to mean arranging for Mr. Jones to be murdered or 

assaulted. Whether such acts are construed as a failure to 

protect him; or as acts that denied Mr. Jones of the “minimal 

civilized measure of life's necessities,” Farmer, 511 U.S. at 

834, the complaint describes actions which are serious enough to 

rise to the level of an Eighth Amendment deprivation. 

Mr. Jones has also alleged facts supporting his claim that 

the defendant prison officials subjectively knew of and 

disregarded the excessive risk to his health and safety. In 

particular, he alleges that Defendants Lunsford, Morison, and 

Powers knowingly moved him to housing units that were dangerous 

to him with the specific purpose of killing or seriously injuring 

him and extorting him to work without proper pay from the state. 

In addition, he alleges that Defendants “conspired to sexually 

[harass, oppress,] extort and place hits on plaintiff by paying 

inmates with tobacco and sex.” 

Defendants allege that these pleadings are insufficient to 

state a claim because they fail to connect allegations to any 

named Defendant. To the contrary, Mr. Jones specifically alleges 

that Defendant Lieutenant Lunsford, Defendant Lieutenant Morison, 

and Defendant Lieutenant Powers placed Mr. Jones in housing units 

that were dangerous to him with the intent of killing, seriously 

injuring, or extorting him. Further, although Mr. Jones does not 

repeat the names of the three defendants in the allegation that 

immediately follows regarding the conspiracy to hire other 

inmates to harass, extort and kill Mr. Jones, the context 

supports an inference that it refers to the same three 

defendants. First, the allegation immediately follows the 

allegation where he identifies the three Lieutenant defendants. 

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Second, Mr. Jones addresses allegations against the remaining two 

defendants in the following paragraph. Third, in his plea for 

injunctive relief, Mr. Jones explains that he was in danger from 

the “Lts.”, and Defendants Lunsford, Morison, and Powers are the 

three defendants that Mr. Jones identifies as lieutenants. 

Accordingly, construing the allegations in the light most 

favorable to Mr. Jones, he has tied those allegations to 

Defendants Lunsford, Morison, and Powers. The allegations 

against those three defendants satisfy the liberal pleading 

standard of Rule 8(a) with respect to Mr. Jones’s claim that his 

Eighth Amendment rights were violated. 

To the extent that Mr. Jones has alleged a claim under the 

Due Process Clause of the Fourteenth Amendment against Defendants 

Lunsford, Morison, and Powers, that claim is redundant of the 

Eighth Amendment claim and need not be considered because “the 

Due Process Clause affords [prison inmates] no greater protection 

than does the Cruel and Unusual Punishment Clause.” Stewart v. 

Wilkinson, No. 2:03-cv-0687, 2008 WL 2674843, *9 (S.D. Ohio July 

7, 2008) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986) and 

citing Lee v. Baker, 181 F.3d 101 (table), 1999 WL 282652 at *1 

(6th Cir. Apr. 30, 1999)). That claim should therefore be 

dismissed. 

B. Constitutional Claims against Defendants Jeffreys and 

Whitten pursuant to §1983

Mr. Jones has alleged that Defendant Warden Jeffreys and 

Defendant Inspector Whitten “demonstrated deliberate indifference 

and [dereliction] of duty in violation of Ohio Revised Code 

[2921.44] [by] failing to take corrective action to address risk 

faced by plaintiff when notified by grievance from chief 

inspector on June 14, 2011 and disapproving protective custody 

requested by plaintiff d[e]spite plaintiff’s imminent danger, 

depriving him [of] procedural due process.” The Court will first 

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address the section 1983 deliberate indifference claim. 

“The ‘denial of administrative grievances or the failure to 

act’ by prison officials does not subject supervisors to 

liability under §1983.” Grinter v. Knight, 532 F.3d 567, 576 

(6th Cir. 2008) (citations omitted) (also noting that “an 

expectation of receiving process is not, without more, a liberty 

interest protected by the Due Process Clause.”); see also Argue 

v. Hofmeyer, 80 Fed. Appx. 427, 430 (6th Cir. 2003) (holding that 

the plaintiff failed to state a claim concerning the alleged 

interference with his ability to file grievances “because there 

is no inherent constitutional right to an effective prison 

grievance procedure”). In the context of an Eighth Amendment 

failure to protect claim, in order for a denial of a grievance to 

rise to the level of a constitutional violation, there must be 

allegations that the defendant had subjective knowledge of the 

threats and that the defendant acted unreasonably in disregarding 

the risk. Williams v. McLemore, 247 Fed. Appx. 1 (6th Cir. June 

19, 2007) (holding that plaintiff failed to state a claim against 

several defendants involved in the grievance process but did 

state a claim against one defendant involved in the grievance 

process). In Williams v. McLemore, the Court of Appeals upheld 

the denial of summary judgment for one defendant (McLemore), 

holding that he stood in a different position from the other 

defendants because there were allegations that he had subjective 

knowledge of the danger to the plaintiff and that he acted 

unreasonably by not conducting a Security Classification 

Committee meeting to determine proper placement for the 

plaintiff. Id. at 11-12 n.6 (noting that because the grievance 

was forwarded to Defendant McLemore “with the implied instruction 

to conduct an SCC meeting, and McLemore failed to do so, this 

case is distinguished from our prior cases that have held that a 

prison official's denial of an administrative grievance cannot be 

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the basis of liability,” (citing Shehee v. Luttrell, 199 F.3d 

295, 300 (6th Cir. 1999) where plaintiff's only allegations 

against defendants was their 'denial of his administrative 

grievances')). 

There are no allegations against Defendant Whitten beyond 

the allegation that he denied the request for protective custody 

as a part of the grievance process. That allegation is not 

sufficient to state a claim against him for deliberate 

indifference. 

There is one additional allegation against Defendant 

Jeffreys. Mr. Jones alleges that the absence of a lawful 

protective custody facility “compel[led] warden Jeffreys to 

disapprove plaintiff[‘]s [protective custody] request forcing 

plaintiff to result to [disciplinary confinement] as a result of 

his imminent danger from the forementioned ‘Lts.’” A similar set 

of circumstances was at issue in Meyer v. McNicholas, 2:07-CV1253, 2009 WL 1362734 (S.D. Ohio May 14, 2009). In that case, 

the Southeastern Correctional Institution did not have a 

protective custody unit. Id. at *2. The defendant in that case 

testified that if an inmate asked for protection from other 

inmates, the defendant would ask the inmate if he wanted to 

“refuse to lock,” which meant opting for a disciplinary violation 

in order to be placed in disciplinary control. Id. at *2. While 

this might provide an inmate with safety from the other inmates, 

it would be recorded on the inmate's conduct report as disobeying 

an officer. Id. The Court in that case held that the defendant 

failed to demonstrate as a matter of law that she took reasonable 

measures to protect the plaintiff. Id. at *4. The Court, in 

leaving that question for the jury to determine, further stated, 

“[t]he Court cannot conclude that resort to a fabricated 

disciplinary procedure in lieu of protective custody is, as a 

matter of law, a reasonable response to a risk of serious harm to 

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an inmate. Particularly is this true where, as here, defendant 

had other options, including the removal of the accused 

perpetrators from the living unit, available to her.” Id. 

The motion before this Court requires a determination of 

whether the allegations, read in the light most favorable to Mr. 

Jones, set forth a claim of deliberate indifference against 

Defendant Jeffreys. While the allegations against Defendant 

Jeffreys are minimal at best, the allegation that the absence of 

a lawful protective custody facility “compel[led] warden Jeffreys 

to disapprove plaintiff[‘]s [protective custody] request forcing 

plaintiff to result [sic] to [disciplinary confinement] as a 

result of his immin[e]nt danger from the forementioned ‘Lts,’” 

suggests that Defendant Jeffreys would have approved the 

protective custody request if there had been such a unit in which 

to place Mr. Jones. From that allegation, it is reasonable to 

infer that Defendant Jeffreys had subjective knowledge of the 

dangers facing Mr. Jones and that instead of taking other action 

to alleviate those dangers, he forced Mr. Jones to opt for 

disciplinary confinement. Construing the complaint liberally, 

this allegation is sufficient to set forth a claim that Defendant 

Jeffreys violated the Eighth Amendment. 

C. State Law Claims 

Mr. Jones has alleged that Defendants Jeffreys and Whitten 

violated O.R.C. §2941.44, but it appears that he intended to 

allege that they violated O.R.C. §2921.44. The former is a 

statute involving the arrest and return of escaped convicts and 

is not applicable to the instant case. The latter sets forth a 

misdemeanor offense of dereliction of duty. Ohio Rev. Code § 

2921.44. It appears that Mr. Jones wishes to allege a violation 

of subsection (C)(3), which provides in relevant part: 

(C) No officer, having charge of a detention 

facility, shall negligently do any of the following: 

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(3) Fail to control an unruly prisoner, or to 

prevent intimidation of or physical harm to a prisoner 

by another;

Ohio Rev. Code § 2921.44(C)(3). Assuming that such a section 

provides a civil cause of action that is appropriately before 

this Court, which has not been addressed by the parties, Mr. 

Jones nonetheless fails to plead facts supporting such a cause of 

action against Defendants Jeffreys and Whitten. There are no 

factual allegations suggesting that Defendants Jeffreys or 

Whitten failed to prevent other inmates from intimidating or 

physically harming Mr. Jones. Accordingly, Mr. Jones has failed 

to state a claim pursuant to O.R.C. §2941.44 or §2921.44. 

D. Injunctive Relief 

Mr. Jones seeks injunctive relief, specifically that he be 

transferred out of Ross Correctional Institution to avoid ongoing 

retaliation. Since the time he filed his complaint, Mr. Jones 

has been transferred out of Ross Correctional Institution and is 

currently housed at the Toledo Correctional Institution. 

Accordingly, his request for injunctive relief is moot. See, 

e.g., Brown v. Collins, No. 2:07-cv-0826, 2010 WL 55720, *2, 4 

(S.D. Ohio Jan. 4, 2010) (citing Becker v. Montgomery, 43 Fed. 

Appx. 914, 915 (6th Cir. 2002); additional citations omitted). 

IV. Order

 Defendants' Motion to Strike (#14) is denied as moot. 

V. Recommended Order

 It is recommended that Defendants’ Motion to Dismiss (#10) 

be granted in part and denied in part as follows. It is 

recommended that Defendants' Motion be granted as to all claims 

against Defendant Whitten, and granted as to the state law claim 

and the claim for injunctive relief. It is recommended that 

Defendants’ Motion be denied as to the remaining claims. 

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VI. Procedure on Objections

If any party objects to this Report and Recommendation, that 

party may, within fourteen days of the date of this Report, file 

and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, 

together with supporting authority for the objection(s). A judge 

of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or 

recommendations to which objection is made. Upon proper 

objections, a judge of this Court may accept, reject, or modify, 

in whole or in part, the findings or recommendations made herein, 

may receive further evidence or may recommit this matter to the 

magistrate judge with instructions. 28 U.S.C. §636(b)(1). 

The parties are specifically advised that failure to object 

to the Report and Recommendation will result in a waiver of the 

right to have the district judge review the Report and 

Recommendation de novo, and also operates as a waiver of the 

right to appeal the decision of the District Court adopting the 

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

/s/ Terence P. Kemp 

United States Magistrate Judge

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